General conditions
1. Definitions
In these general terms and conditions, the following definitions apply:
- You / Your: the party that has accepted the applicability of these general terms and conditions by signing an Agreement or otherwise;
- Mandelo: the contractor, established in Amersfoort at Nijverheidsweg-Noord 66B, 3812PM, registered with the Chamber of Commerce under number 82475709;
- Agreement / Assignment: any meeting of minds between You and Mandelo;
- In writing / written: by e-mail, by WhatsApp, by post or by means of a physical document;
- Third party / parties: persons who are not party to the Agreement.
2. Agreement, quotation and confirmation
1. These general terms and conditions apply to every offer and to all (legal) acts of Mandelo and to every Agreement concluded between You and Mandelo. Deviations from these General Terms and Conditions can only be agreed in writing.
2. Unless expressly agreed otherwise in writing, the applicability of any other general terms and conditions is excluded.
3. Quotations are without obligation and valid for 2 months. Prices are exclusive of VAT. You warrant the accuracy and completeness of the information provided by or on Your behalf to Mandelo on which Mandelo bases its quotation.
4. Assignments are confirmed by You in writing. Tacit consent exists if You allow Mandelo to commence performance of the Assignment. Oral agreements and stipulations only bind Mandelo once they have been confirmed by Mandelo in writing.
3. Performance of the Agreement
1. Mandelo cannot guarantee that the work performed will achieve the result desired by You. The agreed Assignment constitutes a best-efforts obligation (inspanningsverbintenis) and not an obligation to achieve a specific result (resultaatsverbintenis).
2. To the extent necessary, Mandelo will keep You informed of the progress of the work.
3. You will do everything that is reasonably necessary or desirable to enable timely and correct delivery by Mandelo, such as providing (or arranging for the provision of) complete, sound and clear information or materials in good time, where Mandelo indicates, or where You understand or should reasonably understand, that these are necessary for the performance of the Agreement.
4. Any period stated by Mandelo for the performance of the Assignment is indicative and does not constitute a firm deadline (fatale termijn), unless agreed otherwise in writing.
5. Unless agreed otherwise, the Assignment of Mandelo does not include:
5.1 carrying out tests, applying for permits and assessing whether Your instructions comply with statutory or quality standards;
5.2 conducting research into the existence or creation of rights, including patent rights, trademark rights, design rights, copyrights or portrait rights of third parties.
6. Deviations in the (final) result compared with what was agreed are no reason for rejection, reduction, damages or rescission of the Agreement, where such deviations, taking all circumstances into account, are reasonably of minor significance.
7. Mandelo is entitled to engage third parties for the performance of the Agreement. Mandelo is not liable for errors or defects in products or services supplied by third parties. You must address such third parties Yourself.
4. Complaints
1. You can no longer invoke a defect in performance if You have not complained to Mandelo about it within 2 (two) months after You discovered, or should reasonably have discovered, the defect. In the case of a visible defect upon delivery, a period of 48 (forty-eight) hours applies.
2. You must in any event allow Mandelo 4 (four) weeks to resolve the complaint by mutual consultation.
3. If a complaint has not been reported to Mandelo within the periods stated in the preceding paragraphs, the product is deemed to conform to the Agreement and to function in accordance with the Agreement.
4. Complaints do not suspend Your payment obligation if You are acting in the exercise of a profession or business.
5. Intellectual property rights and rights of ownership
1. All intellectual property rights arising from the Assignment vest in Mandelo. Insofar as such a right can only be obtained by filing or registration, only Mandelo is authorised to do so, unless agreed otherwise.
2. You indemnify Mandelo against claims of Third parties concerning intellectual property rights.
3. Mandelo is at all times entitled to state (or have stated) or remove its name on, with or in publicity surrounding the result of the Assignment. You are not permitted to publish or reproduce the result without stating the name of Mandelo without Mandelo's prior consent.
4. The documents provided by Mandelo to You are intended solely for use by You. You are not permitted to publish and/or reproduce the information obtained in any form whatsoever. Unless this is permitted by Mandelo in writing or follows from the nature of the Agreement.
5. After completion of the Assignment, the parties have no obligation towards each other to retain the materials and data used, unless agreed otherwise.
6. If You act in breach of this article, You owe an immediately payable penalty amounting to three times the amount stipulated for that Agreement, without prejudice to Mandelo's right to damages.
6. Use of the result
1. Where You fully comply with Your obligations under the Agreement with Mandelo, You obtain the right to use the result of the Assignment in accordance with the agreed purpose. The right of use is exclusive, unless the nature of the Agreement dictates otherwise or unless agreed otherwise.
2. Without written consent, You do not have the right to modify the result of the Assignment, or to (re)use or execute it more extensively or in a manner other than agreed, or to have this done by third parties. Mandelo may attach conditions to such consent, including the payment of a fair fee.
3. In the event of more extensive or other use that has not been agreed, Mandelo is entitled to compensation for infringement of its rights of at least three times the agreed fee, or at least to compensation that is reasonably and fairly proportionate to the infringement committed, without thereby forfeiting any other right.
4. Mandelo has the freedom, with due regard for Your interests, to use the results for its own reference and promotion.
7. Fee and costs
1. Mandelo is entitled to a fee for performing the Assignment. This may consist of an hourly rate, a consultancy fee, a fixed amount, whether or not related to the project sum, or any other remuneration to be agreed between the parties.
2. In addition to the agreed fee, the costs incurred by Mandelo for the performance of the Assignment are also eligible for reimbursement, such as office, travel and accommodation costs, costs of prints, copies, (printing) proofs, prototypes, and costs of third parties for advice, production and supervision and the like. These costs will be specified in advance as far as possible, except where a surcharge percentage has been agreed.
8. Additional work
1. Where Mandelo is required to carry out more or other work, that work will be remunerated separately, on the basis of the fee rates customarily applied by Mandelo. You accept that such work or performance may affect the agreed objectives and expectations.
9. Payment and suspension
1. All payments must be made within 14 days of the invoice date, unless agreed otherwise in writing or unless the invoice states otherwise.
2. All goods delivered to You remain the property of Mandelo until all amounts owed by You to Mandelo under the Agreement concluded between the parties have been paid to Mandelo in full.
3. Where You are in default in respect of full or partial payment of the amounts owed, You owe statutory interest and extrajudicial collection costs, amounting to at least 10% of the invoice amount with a minimum of € 150 excluding VAT. This default occurs 7 days after You have been notified of the payment obligation and, after expiry of that seven-day period, You have still not complied with the payment obligations.
4. Mandelo ensures timely invoicing. In consultation with You, Mandelo may invoice the agreed fee and costs as an advance payment, in interim instalments or periodically.
5. Your right of suspension and right of set-off are excluded if You are acting in the exercise of Your profession or business.
10. Termination and rescission of the Agreement
1. Where You terminate the Agreement without any culpable failure on the part of Mandelo, or where Mandelo rescinds the Agreement due to an attributable failure by You in the performance of the Agreement, then in addition to the fee and the costs incurred in respect of the work performed up to that point, You owe damages. Conduct on Your part on the basis of which Mandelo can no longer reasonably be required to complete the Assignment is also regarded as an attributable failure.
2. The damages referred to in the preceding paragraph comprise at least the costs arising from the commitments entered into with third parties by Mandelo in its own name for the fulfilment of the Assignment, as well as at least 30% of the remaining part of the fee that You would have owed upon full fulfilment of the Assignment.
3. Mandelo has the right to rescind the Agreement in whole or in part without a notice of default. All amounts owed become immediately due and payable where a petition for bankruptcy, (provisional) suspension of payments (surseance van betaling) or debt restructuring (schuldsanering) is filed in respect of the other party.
4. Where the work of Mandelo arises from a continuing performance contract (duurovereenkomst), that Agreement can only be ended by written notice of termination observing a reasonable notice period of at least three months, during which period You continue to purchase the customary volume of work from Mandelo, or will compensate for it financially.
5. If the Agreement ends on the grounds of force majeure, Mandelo is entitled to payment for the hours already worked or the costs already incurred at the time of termination of the Agreement.
11. Liability
1. Mandelo is not liable for indirect and direct damage. Mandelo's liability for damage resulting from intent or wilful recklessness on the part of Mandelo is not excluded.
2. If Mandelo is nevertheless liable for direct damage, Mandelo's total liability will be limited to compensation for damage up to a maximum of the amount of the fee stipulated for that Agreement (excluding VAT). The amount of such compensation will never exceed the amount paid out by the liability insurance.
3. If the Agreement is a continuing performance contract with a term of more than six months, the fee stipulated for that Agreement is set at the total of the fees (excluding VAT) of the preceding six months.
4. Direct damage is understood to mean:
4.1. Reasonable costs that You would have to incur in order to make Mandelo's performance conform to the Agreement; however, such substitute damage will not be compensated if the Agreement is rescinded by You or at Your instigation;
4.2. Reasonable costs that You have incurred for keeping Your old system or systems and associated facilities operational for longer than necessary because Mandelo has failed to deliver by a final delivery date binding upon it, less any savings resulting from the delayed delivery;
4.3. Reasonable costs incurred in establishing the cause and the extent of the damage, insofar as such determination relates to damage within the meaning of these terms and conditions;
4.4. Reasonable costs incurred to prevent or limit damage, insofar as You demonstrate that these costs have led to a limitation of damage within the meaning of these terms and conditions.
5. A condition for the creation of any right to damages is at all times that You report the damage to Mandelo in writing as soon as possible after it arises. Any claim for damages against Mandelo lapses by the mere expiry of 12 (twelve) months after the claim arises.
6. Mandelo is not liable for damage caused by auxiliary persons as referred to in Article 6:76 of the Dutch Civil Code.
12. Force majeure
1. In addition to Article 6:75 of the Dutch Civil Code, a failure by Mandelo in the performance of its obligations towards You cannot be attributed to Mandelo in the event of circumstances of force majeure. Such circumstances include non-performance by suppliers or other Third parties, power failures and the breakdown of equipment used for the performance of the Agreement.
2. If a situation as referred to in paragraph 1 of this article arises as a result of which Mandelo cannot meet its obligations towards You, those obligations are suspended for as long as Mandelo cannot meet its obligations. If the situation referred to in the preceding sentence has lasted 30 (thirty) calendar days, both Parties have the right to rescind the Agreement in whole or in part in writing. In that case Mandelo is not obliged to compensate any damage, even if Mandelo derives any benefit from the force majeure situation.
13. Warranties and indemnities
1. Where You use the results of the Assignment, You indemnify Mandelo, or third parties engaged by Mandelo for the Assignment, against all claims of third parties arising from the applications or the use of the result of the Assignment. This is without prejudice to Mandelo's liability towards You for non-compliance with the warranties referred to in the preceding paragraph and other liability as referred to in article 11 of these General Terms and Conditions.
14. Confidentiality
1. Confidentiality is mandatory in respect of all confidential information that You have obtained from Mandelo in the context of the Agreement. Information is confidential if Mandelo has stated this to be the case or if this reasonably follows from the nature of the information.
2. If You breach paragraph 1 of this provision, You owe Mandelo an immediately payable penalty of € 20,000 (twenty thousand euros) for each breach, irrespective of whether the breach can be attributed to You and without any prior notice of default or legal proceedings being required, without any form of damage having to be established, and without prejudice to Mandelo's other rights, including its right to claim damages in addition to the penalty.
15. Processing of personal data
1. Insofar as Mandelo processes personal data in the performance of the assignment, the client qualifies as the controller and Mandelo as the processor. This article serves as a data processing agreement within the meaning of Article 28 of the GDPR.
2. The subject matter, nature, purpose, categories of personal data and categories of data subjects follow from the assignment as set out in the quotation, order confirmation or agreement. The processing lasts for as long as Mandelo provides the services.
3. Mandelo processes personal data solely on the basis of the assignment and additional written instructions from the client, and not for its own purposes. Mandelo will report it if, in its opinion, an instruction conflicts with data protection legislation. The client warrants a valid legal basis and the provision of information to data subjects.
4. Mandelo keeps the personal data confidential and ensures that employees and engaged third parties are bound by an equivalent duty of confidentiality and only have access insofar as their work requires it.
5. Mandelo takes appropriate technical and organisational measures, including access on the basis of personal accounts and two-factor authentication, encrypted connections, periodic updates of software and plug-ins, daily back-ups and separate development, test and production environments. The client has satisfied itself that these measures are appropriate.
6. The client gives Mandelo general authorisation to engage sub-processors, including hosting, e-mail and analytics services. A current overview is available on request. Mandelo will inform the client of any addition or replacement. The client may object to this in writing on reasonable grounds within two weeks. If the parties do not reach agreement, the client may terminate the service concerned. Mandelo imposes on sub-processors obligations that are no less strict than this article and remains accountable for their actions.
7. Mandelo does not handle requests from data subjects for access, rectification, erasure or portability itself, but forwards them to the client as soon as possible. Mandelo provides reasonable cooperation in handling such requests and in obligations such as a DPIA or consultation with the Dutch Data Protection Authority. Work requiring more than limited effort will be charged by Mandelo, after consultation, at its customary rates.
8. Mandelo informs the client without undue delay, and in any event within 48 hours of becoming aware, of any personal data breach affecting the client's personal data, providing the information known to it regarding the nature, the scope, the likely consequences and the measures taken. Reporting to the Dutch Data Protection Authority and to data subjects is the responsibility of the client.
9. Mandelo processes the personal data in principle within the European Economic Area. Transfer outside the EEA only takes place on the basis of a valid legal basis, such as an adequacy decision or standard contractual clauses.
10. Mandelo makes available on request the information the client needs in order to establish compliance with this article. The client may have an audit carried out no more than once a year by an independent expert bound by confidentiality, with at least two weeks' notice. The costs are borne by the client, unless the audit shows that Mandelo has not complied with this article.
11. Upon termination of the services, Mandelo will delete the personal data or, on request, transfer it in a commonly used format, subject to any statutory retention obligation and the customary retention period for back-ups. Work for export or transfer will be charged at the customary rates.
12. If the parties conclude a separate data processing agreement, that agreement prevails over this article.
16. Amendment
1. Mandelo is entitled to amend or supplement these general terms and conditions unilaterally. In that case Mandelo will notify You of the amendments or additions in good time.
2. There will be 30 (thirty) days between such notification and the entry into force of the amended or supplemented terms and conditions.
17. Miscellaneous provisions
1. Where You wish to award the same Assignment to parties other than Mandelo at the same time, or have already awarded the Assignment to another party, You will inform the contractor of this, stating the names of those other parties.
2. Rights of a party under this Agreement cannot be transferred without the prior written consent of the other party. This provision constitutes a stipulation with effect under property law as referred to in Article 3:83(2) of the Dutch Civil Code.
3. If any provision of these General Terms and Conditions is null and void or is annulled, the remaining provisions of these General Terms and Conditions will remain in force. In that case the parties will enter into consultation with a view to agreeing new provisions to replace the void or annulled provisions, observing as far as possible the purpose and purport of the void or annulled provisions.
4. Dutch law applies to the Agreement between You and Mandelo. The parties will first attempt to resolve any dispute that arises by mutual consultation. Except where the parties have expressly agreed to arbitration in writing, disputes between You and Mandelo will be heard by the court having jurisdiction under the law, or by the court in the district in which Mandelo is established, at the option of Mandelo.